EXHIBIT 10.5
REGISTRATION RIGHTS AGREEMENT
THIS REGISTRATION RIGHTS AGREEMENT, dated as of April 7, 2004 (this
"Agreement"), is made by and between DOTRONIX, INC. , a Minnesota corporation,
with headquarters located at 000 Xxxxx Xxxxxx X.X, Xxx Xxxxxxxx, XX 00000-0000
(the "Company"), and the Estate of Xxxxxxx X. Xxxxxx, 0000 Xxxx Xxxx Xxxxxx,
Xxxxxxxxx, XX 00000 (the "the Estate").
W I T N E S S E T H:
WHEREAS, upon the terms and subject to the conditions of Amendment to
Extend and Amend Loan and Security Agreement, dated November 5, 2003, as amended
by Amendment No.1 dated as of April 7, 2004 (the "Loan Agreement"; terms not
otherwise defined herein shall have the meanings ascribed to them in the Loan
Agreement), the Company has agreed to issue to the Estate warrants (the
"Warrants") to purchase up to 385,000 shares of Common Stock at an exercise
price of $0.05 per share (the "Warrant Shares"); the Warrants are issued in
exchange for the cancellation of certain outstanding warrants, as specified in
the Loan Agreement; and
WHEREAS, to induce the Estate to execute and deliver the Loan
Agreement, the Company has agreed to provide certain piggyback registration
rights under the Securities Act of 1933, as amended, and the rules and
regulations thereunder, or any similar successor statute (collectively, the
"Securities Act"), with respect to the Common Stock;
NOW, THEREFORE, in consideration of the premises and the mutual
covenants contained herein and other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the Company and the
Estate hereby agree as follows:
1. DEFINITIONS. As used in this Agreement, the following terms shall
have the following meanings:
(a) "the Estate" means the Estate and any permitted transferee or
assignee of the Estate who agrees to become bound by the provisions of this
Agreement in accordance with Section 9 hereof and who holds Registrable
Securities.
(b) "Register," "Registered," and "Registration" refer to a
registration effected by preparing and filing a Registration Statement or
Statements in compliance with the Securities Act and pursuant to Rule 415 under
the Securities Act or any successor rule providing for offering securities on a
continuous basis ("Rule 415"), and the declaration or ordering of effectiveness
of such Registration Statement by the United States Securities and Exchange
Commission (the "SEC").
(c) "Registrable Securities" means the Warrant Shares, together with
any shares of Common Stock issued or issuable upon any stock split, dividend or
other distribution, recapitalization or similar event with respect to the
foregoing; provided, however, that such securities shall cease to be Registrable
Securities (i) upon their sale pursuant to a Registration Statement, (ii) upon
their sale pursuant to Rule 144 under the Securities Act, or (iii) as soon as
they are transferable under Rule 144(k) of the Securities Act
25
(d) "Registration Statement" means a registration statement of the
Company with the Securities and Exchange Commission for a public offering and
sale of securities of the Company (other than a registration statement on Form
X-0, Xxxx X-0, any successor form thereto, or any other form covering only
securities proposed to be issued in exchange for securities or assets of another
corporation).
2. REGISTRATION RIGHTS. THE ESTATE shall have demand piggy-back
registration rights with respect to the Registrable Securities, subject to the
conditions set forth below. If, at any time, the Company participates (whether
voluntarily or by reason of an obligation to a third party) in the registration
of any shares of the Company's stock within two (2) years from the date hereof,
the Company shall give written notice thereof to the Estate and the Estate shall
have the right, exercisable within ten (10) business days after receipt of such
notice, to demand inclusion of all or a portion of the Estate's Registrable
Securities in such registration statement. If the Estate exercises such
election, the Registrable Securities so designated shall be included in the
registration statement at no cost or expense to the Estate.
In connection with any offering under this Section 2 involving an
underwriting, the Company shall not be required to include any Registrable
Securities in such underwriting unless the Estate accepts the terms of the
underwriting as agreed upon between the Company and the underwriters selected by
it. If, in the written opinion of the managing underwriter, the registration of
all, or part of, the Registrable Securities that the Estate has requested to be
included in such registration exceed the number of shares that can be sold
without adversely affecting the marketability of the offering, then the Company
shall be required to include in the underwriting only the number of Registrable
Securities that the managing underwriter believes may, when added to the number
of shares of Common Stock that other holders entitled to include shares of
Common Stock in such registration have requested to be included therein, be sold
without causing such adverse effect. If the number of Registrable Securities to
be included in the underwriting in accordance with the foregoing is less than
the total number of shares that the Estate has requested to be included, then
the Estate and other holders of shares of Common Stock entitled to include
shares of Common Stock in such registration shall participate in the
underwriting pro rata based upon their total ownership of shares of Common Stock
of the Company. If any holder would thus be entitled to include more shares than
such holder requested to be registered, the excess shall be allocated among
other requesting holders pro rata based upon their total ownership of
registrable shares.
3. OBLIGATIONS OF THE COMPANY. In connection with a registration of the
Registrable Securities, the Company shall do each of the following.
(a) Prepare, and file with the SEC a Registration Statement with
respect to not less than the number of Registrable Securities provided in
Section 2 above, and thereafter use its reasonable best efforts to cause such
Registration Statement relating to Registrable Securities to become effective.
(b) Notify the Estate, not less than five (5) days prior to such
filing; and (if so requested by the Estate) confirm such notice in writing no
later than one (1) business day following the day (i)(A) when a Prospectus or
any Prospectus supplement or post-effective amendment to the Registration
Statement is proposed to be filed; (B) whenever the SEC notifies the Company
whether there will be a "review" of such Registration Statement; (C) whenever
the Company receives (or a representative of the Company receives on its behalf)
any
26
oral or written comments from the SEC in respect of a Registration Statement
(copies or, in the case of oral comments, summaries of such comments shall be
promptly furnished by the Company to the Estate); and (D) with respect to the
Registration Statement.
(c) Furnish to the Estate (i) promptly after the same is prepared and
publicly distributed, filed with the SEC, or received by the Company, one (1)
copy of the Registration Statement, each preliminary prospectus and prospectus,
and each amendment or supplement thereto, and (ii) such number of copies of a
prospectus, and all amendments and supplements thereto and such other documents,
as the Estate may reasonably request in order to facilitate the disposition of
the Registrable Securities owned by the Estate;
(d) As promptly as practicable after becoming aware thereof, notify the
Estate of the happening of any event of which the Company has knowledge, as a
result of which the prospectus included in the Registration Statement, as then
in effect, includes an untrue statement of a material fact or omits to state a
material fact required to be stated therein or necessary to make the statements
therein, in light of the circumstances under which they were made, not
misleading, and use its best efforts promptly to prepare a supplement or
amendment to the Registration Statement or other appropriate filing with the SEC
to correct such untrue statement or omission, and deliver a number of copies of
such supplement or amendment to the Estate as the Estate may reasonably request;
(e) As promptly as practicable after becoming aware thereof, notify the
Estate of the issuance by the SEC of a Notice of Effectiveness or any notice of
effectiveness or any stop order or other suspension of the effectiveness of the
Registration Statement at the earliest possible time;
(f) Use its reasonable efforts to secure and maintain the designation
of all the Registrable Securities covered by the Registration Statement on the
"OTC Bulletin Board Market" of the National Association of Securities Dealers
Automated Quotations System ("NASDAQ") within the meaning of Rule 11Aa2-1 of the
SEC under the Securities Exchange Act of 1934, as amended (the "Exchange Act"),
and the quotation of the Registrable Securities on The NASDAQ Bulletin Board
Market; and, without limiting the generality of the foregoing, to arrange for at
least two market makers to register with the National Association of Securities
Dealers, Inc. ("NASD") as such with respect to such Registrable Securities;
(g) Provide a transfer agent and registrar, which may be a single
entity, for the Registrable Securities not later than the effective date of the
Registration Statement;
(j) Cooperate with the Estate to facilitate the timely preparation and
delivery of certificates for the Registrable Securities to be offered pursuant
to the Registration Statement and enable such certificates for the Registrable
Securities to be in such denominations or amounts as the case may be, as the
Estate may reasonably request.
4. OBLIGATIONS OF THE ESTATE. In connection with a registration of the
Registrable Securities, the Estate shall have the following obligations:
(a) It shall be a condition precedent to the obligations of the Company
with respect to the Registrable Securities that the Estate shall furnish to the
Company such information regarding itself, the Registrable Securities held by
it, and the intended method of
27
disposition of the Registrable Securities held by it, as shall be reasonably
required to effect the registration of such Registrable Securities and shall
execute such documents in connection with such registration as the Company may
reasonably request. At least ten (10) days prior to the first anticipated filing
date of the Registration Statement, the Company shall notify the Estate of the
information the Company requires from the Estate (the "Requested Information")
if the Estate elects to have any of the Estate's Registrable Securities included
in the Registration Statement. If at least two (2) business days prior to the
filing date the Company has not received the Requested Information from the
Estate, then the Company may file the Registration Statement without including
the Registrable Securities;
(b) the Estate, by the Estate's acceptance of the Registrable
Securities, agrees to cooperate with the Company as reasonably requested by the
Company in connection with the preparation and filing of the Registration
Statement hereunder, unless the Estate has notified the Company in writing of
the Estate's election to exclude all of the Estate's Registrable Securities from
the Registration Statement; and
(c) the Estate agrees that, upon receipt of any notice from the Company
of the happening of any event of the kind described in Section 3(d) or (e),
above, the Estate will immediately discontinue disposition of Registrable
Securities pursuant to the Registration Statement covering such Registrable
Securities until the Estate's receipt of the copies of the supplemented or
amended prospectus contemplated by Section 3(d) and, if so directed by the
Company, the Estate shall deliver to the Company or destroy (and deliver to the
Company a certificate of destruction) all copies in the Estate's possession, of
the prospectus covering such Registrable Securities current at the time of
receipt of such notice.
5. EXPENSES OF REGISTRATION.
(a) All reasonable expenses incurred in connection with registrations,
filings or qualifications pursuant to Section 3, but including, without
limitation, all registration, listing, and qualifications fees, printers and
accounting fees, the fees and disbursements of counsel for the Company, shall be
borne by the Company.
(b) Neither the Company nor any of its subsidiaries has, as of the date
hereof, entered into, nor shall the Company nor any of its subsidiaries, on or
after the date of this Agreement, enter into any agreement with respect to its
securities that is inconsistent with the rights granted to the Estate in this
Agreement or otherwise conflicts with the provisions hereof.
6. INDEMNIFICATION. In the event any Registrable Securities are
included in a Registration Statement under this Agreement:
(a) To the extent permitted by law, the Company will indemnify and hold
harmless the Estate who holds such Registrable Securities, the beneficiaries and
distributees, if any, of the Estate, each person, if any, who controls the
Estate within the meaning of the Securities Act or the Exchange Act (each, an
"Indemnified Person" or "Indemnified Party"), against any losses, claims,
damages, liabilities or expenses (joint or several) incurred (collectively,
"Claims") to which any of them may become subject under the Securities Act, the
Exchange Act or otherwise, insofar as such Claims (or actions or proceedings,
whether commenced or threatened, in respect thereof) arise out of or are based
upon any of the
28
following statements, omissions or violations in the Registration Statement, or
any post-effective amendment thereof, or any prospectus included therein: (i)
any untrue statement or alleged untrue statement of a material fact contained in
the Registration Statement or any post-effective amendment thereof or the
omission or alleged omission to state therein a material fact required to be
stated therein or necessary to make the statements therein not misleading, (ii)
any untrue statement or alleged untrue statement of a material fact contained in
the final prospectus (as amended or supplemented, if the Company files any
amendment thereof or supplement thereto with the SEC) or the omission or alleged
omission to state therein any material fact necessary to make the statements
made therein, in light of the circumstances under which the statements therein
were made, not misleading or (iii) any violation or alleged violation by the
Company of the Securities Act, the Exchange Act, any state securities law or any
rule or regulation under the Securities Act, the Exchange Act or any state
securities law (the matters in the foregoing clauses (i) through (iii) being,
collectively, "Violations"). Subject to clause (b) of this Section 6, the
Company shall reimburse the Estate promptly as such expenses are incurred and
are due and payable for any legal fees or other reasonable expenses incurred by
the Estate in connection with investigating or defending any such Claim.
Notwithstanding anything to the contrary contained herein, the indemnification
agreement contained in this Section 6(a) shall not (I) apply to a Claim arising
out of or based upon a Violation that occurs in reliance upon and in conformity
with information furnished in writing to the Company by or on behalf of any
Indemnified Person expressly for use in connection with the preparation of the
Registration Statement or any such amendment thereof or supplement thereto, if
such prospectus was timely made available by the Company pursuant to Section
3(c) hereof; (II) be available to the extent such Claim is based on a failure of
the Estate to deliver or cause to be delivered the prospectus made available by
the Company; or (III) apply to amounts paid in settlement of any Claim if such
settlement is effected without the prior written consent of the Company, which
consent shall not be unreasonably withheld. The Estate will indemnify the
Company and its officers, directors and agents (each, an "Indemnified Person" or
"Indemnified Party") against any claims arising out of or based upon a Violation
that occurs in reliance upon and in conformity with information furnished in
writing to the Company, by or on behalf of the Estate, expressly for use in
connection with the preparation of the Registration Statement, subject to such
limitations and conditions as are applicable to the Indemnification provided by
the Company to this Section 6. Such indemnity shall remain in full force and
effect regardless of any investigation made by or on behalf of the Indemnified
Person and shall survive the transfer of the Registrable Securities by the
Estate pursuant to Section 9.
(b) Promptly after receipt by an Indemnified Person or Indemnified
Party under this Section 6 of notice of the commencement of any action
(including any governmental action), such Indemnified Person or Indemnified
Party shall, if a Claim in respect thereof is to be made against any
indemnifying party under this Section 6, deliver to the indemnifying party a
written notice of the commencement thereof and the indemnifying party shall have
the right to participate in, and, to the extent the indemnifying party so
desires, jointly with any other indemnifying party similarly noticed, to assume
control of the defense thereof with counsel mutually satisfactory to the
indemnifying party and the Indemnified Person or the Indemnified Party, as the
case may be. In case any such action is brought against any Indemnified Person
or Indemnified Party, and it notifies the indemnifying party of the commencement
thereof, the indemnifying party will be entitled to participate in, and, to the
extent that it may wish, jointly with any other indemnifying party similarly
notified, assume the defense thereof, subject to the provisions herein stated
and after notice from the indemnifying party to such Indemnified Person or
Indemnified Party of its election so to assume the defense thereof, the
indemnifying
29
party will not be liable to such Indemnified Person or Indemnified Party under
this Section 6 for any legal or other reasonable out-of-pocket expenses
subsequently incurred by such Indemnified Person or Indemnified Party in
connection with the defense thereof other than reasonable costs of
investigation, unless the indemnifying party shall not pursue the action of its
final conclusion. The Indemnified Person or Indemnified Party shall have the
right to employ separate counsel in any such action and to participate in the
defense thereof, but the fees and reasonable out-of-pocket expenses of such
counsel shall not be at the expense of the indemnifying party if the
indemnifying party has assumed the defense of the action with counsel reasonably
satisfactory to the Indemnified Person or Indemnified Party. The failure to
deliver written notice to the indemnifying party within a reasonable time of the
commencement of any such action shall not relieve such indemnifying party of any
liability to the Indemnified Person or Indemnified Party under this Section 6,
except to the extent that the indemnifying party is prejudiced in its ability to
defend such action. The indemnification required by this Section 6 shall be made
by periodic payments of the amount thereof during the course of the
investigation or defense, as such expense, loss, damage or liability is incurred
and is due and payable.
7. CONTRIBUTION. To the extent any indemnification by an indemnifying
party is prohibited or limited by law, the indemnifying party agrees to make the
maximum contribution with respect to any amounts for which it would otherwise be
liable under Section 6 to the fullest extent permitted by law; provided,
however, that (a) no contribution shall be made under circumstances where the
maker would not have been liable for indemnification under the fault standards
set forth in Section 6; (b) no seller of Registrable Securities guilty of
fraudulent misrepresentation (within the meaning of Section 11(f) of the
Securities Act) shall be entitled to contribution from any seller of Registrable
Securities who was not guilty of such fraudulent misrepresentation; and (c)
contribution by any seller of Registrable Securities shall be limited in amount
to the net amount of proceeds received by such seller from the sale of such
Registrable Securities.
8. REPORTS UNDER EXCHANGE ACT. With a view to making available to the
Estate the benefits of Rule 144 promulgated under the Securities Act or any
other similar rule or regulation of the SEC that may at any time permit the
Estate to sell securities of the Company to the public without registration
("Rule 144"), the Company agrees to:
(a) file with the SEC in a timely manner all reports and other
documents required of the Company under the Securities Act and the Exchange Act,
or, if the provisions of Rule 144(c)(2) are applicable, ensure that the
standards contemplated by Rule 144(c) to permit sales by the Estate under said
Rule 144 are satisfied at all times; and
(b) furnish to the Estate so long as the Estate owns Registrable
Securities, promptly upon request, (i) a written statement by the Company that
it has complied with the reporting requirements of Rule 144, the Securities Act
and the Exchange Act, (ii) a copy of the most recent annual or quarterly report
of the Company and such other reports and documents so filed by the Company and
(iii) such other information as may be reasonably requested to permit the Estate
to sell such securities pursuant to Rule 144 without registration.
9. ASSIGNMENT OF THE REGISTRATION RIGHTS. The rights to have the
Company register Registrable Securities pursuant to this Agreement shall be
automatically assigned by the Estate to any transferee of the Registrable
Securities only if: (a) the Estate
30
agrees in writing with the transferee or assignee to assign such rights, and a
copy of such agreement is furnished to the Company within a reasonable time
after such assignment, (b) the Company is, within a reasonable time after such
transfer or assignment, furnished with written notice of (i) the name and
address of such transferee or assignee and (ii) the securities with respect to
which such registration rights are being transferred or assigned, (c)
immediately following such transfer or assignment the further disposition of
such securities by the transferee or assignee is restricted under the Securities
Act and applicable state securities laws, and (d) at or before the time the
Company received the written notice contemplated by clause (b) of this sentence
the transferee or assignee agrees in writing with the Company to be bound by all
of the provisions contained herein. In the event of any delay in filing or
effectiveness of the Registration Statement as a result of such assignment, the
Company shall not be liable for any damages arising from such delay.
10. AMENDMENT OF REGISTRATION RIGHTS. Any provision of this
Agreement may be amended and the observance thereof may be waived (either
generally or in a particular instance and either retroactively or
prospectively), only with the written consent of the Company and the Estate. Any
amendment or waiver effected in accordance with this Section 10 shall be binding
upon the Estate and the Company.
11. MISCELLANEOUS.
(a) A person or entity is deemed to be the owner of Registrable
Securities whenever such person or entity owns of record such Registrable
Securities. If the Company receives conflicting instructions, notices or
elections from two or more persons or entities with respect to the same
Registrable Securities, the Company shall act upon the basis of instructions,
notice or election received from the registered owner of such Registrable
Securities.
(b) Notices required or permitted to be given hereunder shall be given
in the manner contemplated by the Agreement, if to the Company or to the Estate,
to their respective address contemplated by the Agreement, or at such other
address as each such party furnishes by notice given in accordance with this
Section 11(b).
(c) Failure of any party to exercise any right or remedy under this
Agreement or otherwise, or delay by a party in exercising such right or remedy,
shall not operate as a waiver thereof.
(d) This Agreement shall be governed by and interpreted in accordance
with the laws of the State of Minnesota for contracts to be wholly performed in
such state and without giving effect to the principles thereof regarding the
conflict of laws. Each of the parties consents to the jurisdiction of the
federal courts whose districts encompass any part of the City of Minneapolis or
the state courts of the State of Minnesota sitting in the City of Minneapolis in
connection with any dispute arising under this Agreement and hereby waives, to
the maximum extent permitted by law, any objection, including any objection
based on FORUM NON COVENIENS, to the bringing of any such proceeding in such
jurisdictions.
(e) If any provision of this Agreement shall be invalid or
unenforceable in any jurisdiction, such invalidity or unenforceability shall not
affect the validity or enforceability of the remainder of this Agreement or the
validity or enforceability of this Agreement in any other jurisdiction.
31
(f) Subject to the requirements of Section 9 hereof, this Agreement
shall inure to the benefit of and be binding upon the successors and assigns of
each of the parties hereto.
(g) All pronouns and any variations thereof refer to the masculine,
feminine or neuter, singular or plural, as the context may require.
(h) The headings in this Agreement are for convenience of reference
only and shall not limit or otherwise affect the meaning thereof.
(i) This Agreement may be executed in one or more counterparts, each of
which shall be deemed an original but all of which shall constitute one and the
same agreement. This Agreement, once executed by a party, may be delivered to
the other party hereto by telephone line facsimile transmission of a copy of
this Agreement bearing the signature of the party so delivering this Agreement.
(j) This Agreement constitutes the entire agreement among the parties
hereto with respect to the subject matter hereof. There are no restrictions,
promises, warranties or undertakings, other than those set forth or referred to
herein. This Agreement supersedes all prior agreements and understandings among
the parties hereto with respect to the subject matter hereof. This Agreement may
be amended only by an instrument in writing signed by the party to be charged
with enforcement thereof.
IN WITNESS WHEREOF, the parties have caused this Agreement to be duly
executed by their respective representatives thereunto duly authorized as of the
day and year first above written.
The Estate of Xxxxxxx X. Xxxxxx
By its Personal Representatives
/s/ Xxxxxxx X. Xxxxxx
Xxxxxxx X. Xxxxxx
/S/ XXXX X. XXXXXX
Xxxx X. Xxxxxx
/s/ Xxxx X. Xxxxxx
Xxxx X. Xxxxxx
DOTRONIX, INC.
By: /s/ Xxxxxx X. Xxxxx
Xxxxxx X. Xxxxx
Its Chief Financial Officer
32
